Parabens Dropped as a Priority Chemical Under New Green Chemistry Regulations – DTSC Updates List of Initial Candidate Chemicals

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On October 18, 2013, the California Department of Toxic Substances Control (DTSC) released an updated “Initial Candidate Chemicals List” – a list of chemicals that will be the first to receive the DTSC’s attention when it identifies “Priority Products” for regulation in 2014 under the new Safer Consumer Products Regulations.

The DTSC first released the list of “Initial Candidate Chemicals” on September 26, 2013, four days before the Safer Consumer Products Regulations implementing California’s Green Chemistry Initiative went into effect.  The Regulations require the list to be updated periodically.  With the update, the number of “Initial Candidate Chemicals” drops from 164 to 155.

The following chemicals were removed from the updated “Initial Candidate Chemicals List,” although each still appears on the “Candidate Chemical List”:

  • 4-Tert-Octylphenol; 1,1,3,3-Tetramethyl-4-butylphenol
  • Bisphenol A diglycidyl ether polymer; [2,2′-bis(2-(2,3-epoxypropoxy)phenyl)-propane]
  • Bisphenol B; (2,2-Bis(4-hydroxyphenyl)-n-butan)
  • Bromate
  • Dibromoacetic acid
  • Dichloroacetic acid
  • Dicyclohexyl phthalate and metabolite
  • Diethyl phthalate and metabolite
  • Nonylphenol, nonylphenol ethoxylates (NP/NPEs) (and related substances)
  • Parabens

In addition, Bis(2-chloro-1-methylethyl)ether,technical grade was added to the Initial Candidate List.

Scroll to the bottom of this post for the full list of the 155 priority chemicals, updated as of October 18, 2013.

Chemicals are placed on the “Initial Candidate Chemicals List” if they have both a hazard trait and environmental or toxicological effects.  Chemicals that have only a hazard trait or only environmental or toxicological effects are placed on the more extensive “Candidate Chemicals List,” of which the “Initial Candidate Chemicals List” is a subset.

The updated list of “Initial Candidate Chemicals” is significant in that it removes parabens as a priority chemical.  Parabens are commonly used in cosmetics as a preservative.  The family of parabens on the “Candidate Chemicals List” includes Butylparaben (includes n-butylparaben and isobutylparaben); Ethyl paraben, Ethyl 4-hydroxybenzoate; Methylparaben; Methyl p-Hydroxybenzoate; and n-Propylparaben.

What this means is that parabens will not be targeted by DTSC as a potential “chemical of concern” when the DTSC identifies priority products containing chemicals that will need to be subject to an alternatives analysis and regulatory response.  The DTSC must propose its list of up to five priority products, or categories of priority products, for regulation by April 1, 2014.  However, parabens continue to appear on the DTSC’s exhaustive list of more than 1,016 “Candidate Chemicals” so they may yet draw attention from the DTSC.

Conkle, Kremer & Engel attorneys stay up to date on the latest regulatory developments to provide expert guidance to clients seeking to avoid regulatory compliance issues and the potential liability that may follow.

DTSC list of 155 Priority Chemicals, updated as of October 18, 2013:

1,1,1,2-Tetrachloroethane

1,1,1-Trichloroethane; Methyl chloroform

1,1,2,2-Tetrachloroethane

1,1,2-Trichloroethane

1,1-Dichloroethane

1,2,3-Trichloropropane

1,2-Diphenylhydrazine; Hydrazobenzene

1,2-Epoxybutane

1,3-Butadiene

1,3-Propane sultone; 1,2-Oxathiolane 2,2-dioxide

1,4-Dioxane

2,2-Bis(bromomethyl)propane-1,3-diol

2,4,6-Trinitro-1,3-dimethyl-5-tert-butylbenzene; musk xylene

2,4,6-Tri-tert-butylphenol

2,4.6-Trinitrotoluene (TNT)

2?Acetylaminofluorene

2-Methylaziridine (Propyleneimine)

2-Methylphenol, o-Cresol

2-Nitropropane

3-Methylphenol; m-Cresol

4,4′-Methylenedianiline; 4,4’-Diaminodiphenylmethane (MDA)

4-Bromophenyl phenyl ether, Bromophenyl Phenyl Ether

4-Nitrobiphenyl

Acetaldehyde

Acetamide

Acrylamide

Acrylonitrile

Allyl chloride

Aluminum

Aniline

Aromatic amines

Aromatic Azo Compounds

Arsenic and inorganic arsenic compounds

Asbestos (all forms, including actinolite, amosite, anthophyllite, chrysotile, crocidolite, tremolite)

Benzene

Benzene, Halogenated derivatives

Benzotrichloride

Benzyl chloride

Beryllium and Beryllium compounds

Biphenyl-3,3′,4,4′-tetrayltetraamine; Diaminobenzidine

Bis(2-chloro-1-methylethyl)ether,technical grade

Bisphenol A

Butylbenzyl phthalate and metabolite

Cadmium and cadmium compounds

Captan

Carbon monoxide

Carbon tetrachloride; CCl4

Catechol

Chlorendic acid

Chlorinated Paraffins

Chlorine dioxide

Chlorite

Chloroalkyl ethers

Chloroethane; ethyl chloride

Chloroprene; 2-chlorobuta-1,3-diene

Chromium hexavalent compounds (Cr (VI)

Chromium trioxide

Cobalt metal without tungsten carbide (including dust and cobalt compounds)

Cresols, Cresol mixtures

Cumene, [ isopropylbenzene]

Cyanide and Cyanide compounds

Cyclotetrasiloxane; Octamethylcyclotetrasiloxane (D4)

Diazomethane

Dibutyl phthalate and metabolites

Dichloroethylenes

Dichloromethane; methylene chloride

Diesel engine exhaust

Diethanolamine

Diethyl hexyl phthalate and metabolites

Diisobutyl phthalate and metabolite

Di-isodecyl phthalate and metabolite

Di-isononyl phthalate and metabolites

Dimethyl sulfate

Dimethylcarbamoyl chloride

Dinitrotoluenes

Di-n-Octyl Phthalate and metabolites

Dodecamethylcyclohexasiloxane (D6)

Emissions, Cokeoven

Epichlorohydrin; 1-Chloro-2,3-epoxypropane

Ethyl acrylate

Ethylbenzene

Ethylene dichloride; 1,2-Dichloroethane

Ethylene Glycol

Ethylene oxide; oxirane

Ethylene Thiourea

Ethyleneimine, Aziridine

Ethyl-tert-butyl ether

Formaldehyde

Fuel oils, high-sulfur; Heavy Fuel oil; (and other residual oils)

Gasoline (automotive, refined, processed, recovered, and other unspecified fractions)

Glutaraldehyde

Glycol ethers

Glycol ethers acetate

Hexabromocyclododecane (HBCD), and mixed isomers

Hexachlorobuta1,3-diene

Hexachloroethane

Hexamethylene-1,6-diisocyanate

Hexamethylphosphoramide

HMX

Hydrazine, Hydrazine compounds and salts

Hydrogen sulfide

Jet Fuels, JP-4, JP-5, JP-7 and JP-8

Lead and Lead Compounds

Maleic anhydride

Manganese and manganese compounds

Mercury and mercury compounds

Methanol

Methyl chloride

Methyl isobutyl ketone, Isopropyl acetone; (MIBK)

Methyl isocyanate

Methylene diphenyl diisocyanates

Methylhydrazine and its salts

Methylnaphthalene; 2-Methylnaphthalene

Mineral Oils: Untreated and Mildly Treated

N,N-dimethylformamide; dimethyl formamide

N,N-Dimethylhydrazine

Naphthalene

n-Hexane

Nickel and Nickel Compounds; Nickel refinery dust from the pyrometallurgical process

Nickel oxides

Nickel, metallic and alloys

Nitrate+Nitrite

Nitrobenzene

Nitrosamines

Pentabromophenol

Perfluorochemicals

Petroleum; Crude oil

Phthalic anhydride

Polybrominated diphenyl ethers (PBDEs) congeners

Polychlorinated biphenyl (PCB) congeners

Polychlorinated dibenzo-p-dioxins (PCDDs)

Polychlorinated dibenzo-p-furans (PCDFs) and Furan Compounds

Polycyclic Aromatic Hydrocarbons (PAHs)

Propylene oxide

Quinoline and its strong acid salts

Silica, Crystalline (Respirable Size)

Stoddard solvent; Low boiling point naphtha – unspecified;

Strong Inorganic Acid Mists Containing Sulfuric Acid

Styrene and derrivatives

Sulfur dioxide

Tetrabromobisphenol A (TBBPA)

Tetrachloroethylene; Perchloroethylene; (PERC)

Thallium

Toluene

Toluene Diisocyanates

Trichloroethene (TCE)

Trihalomethanes

Tris(1,3-dichloro-2-propyl) phosphate (TDCPP)

Tris(2,3-dibromopropyl) phosphate

Tris(2-chloroethyl)phosphate (TCEP)

Vanadium pentoxide

Vinyl acetate

Vinyl Bromide, Bromoethylene

Vinyl chloride; chloroethylene

Xylenes; [o-xylene (95-47-6), m-xylene(108-38-3)and p-xylene (106-42-3)]

 

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California Safe Cosmetics Act of 2005: A Sleeper That May Awake in 2014

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California has a well deserved reputation for extraordinary efforts to protect consumers.  While the goals behind the regulations may be laudable, California’s many requirements impose enormous burdens on companies doing business in the state, often with questionable public benefit.  Proposition 65 is a familiar example of a regulation that requires elaborate warnings, but does not actually regulate the use of any chemicals.

There are many other examples, including a “sleeper” called the Safe Cosmetics Act.  Enacted in 2005, the Safe Cosmetics Act was heralded by its supporters as a landmark law that would protect the health of millions of Californians who use cosmetics.  In reality, the Safe Cosmetics Act is just another glorified reporting statute, requiring manufacturers of cosmetic products sold in California to file with the California Department of Public Health (CDPH) reports of information that is already on product ingredient labels.

But the Safe Cosmetics Act takes the idea of the consumers’ “right to know” to an extreme by imposing a precautionary rather than risk-based approach.  Unlike Prop 65, the Safe Cosmetics Act requires manufacturers to report use of chemicals that are not just “known” to cause cancer or reproductive harm, but also chemicals that are “suspected” to cause cancer or reproductive harm.  In addition, the Safe Cosmetics Act does not recognize any “safe harbor” levels for reporting – any amount of a “suspect” chemical must be reported.  Finally, cosmetic products that contain a reportable chemical must be reported regardless of whether the likely mode of exposure to the chemical by use of the product differs from the route of exposure identified by the authoritative scientific body as a pathway likely to cause cancer or reproductive harm.  For example, a chemical that has only been identified as “suspected” of causing cancer or reproductive harm when ingested must be reported even if it is contained in a skincare product.

In future blog posts, we’ll address why the Safe Cosmetics Act could become much more significant to personal care products manufacturers beginning in 2014, the risks of liability to manufacturers posed by the Safe Cosmetics Act, and how manufacturers can know if their products contain the regulated  chemicals.  At Conkle, Kremer & Engel, we help our clients meet compliance requirements, despite constantly changing state and federal laws.  With proper counseling, clients can avoid potential liability and minimize disruption to their businesses.

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Navigating Civil Regulatory Issues: CK&E Presentation Highlights Key Regulations for Beauty Companies Doing Business in California

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Conkle, Kremer & Engel attorneys were featured speakers at the Beauty Industry West presentation “Navigating in Challenging Regulatory Waters:  Updates on California and Federal Compliance.”  About 150 entrepreneurs, consultants, executives and beauty industry professionals attended the event at the Crowne Plaza Hotel LAX in Los Angeles on October 15, 2013, which included a valuable networking session and a post-presentation Q&A.

CK&E’s presentation about legal regulatory issues for personal care product companies doing business in California included an overview of the California Organic Products Act (COPA), Proposition 65 (California’s Safe Drinking Water and Toxic Enforcement Act) and California’s Green Chemistry Initiative including the new Safer Consumer Products Regulations.  Conkle, Kremer & Engel’s materials from the BIW event, including the “Navigating Civil Regulatory Issues” presentation and its “Resource Guide for Regulatory Compliance,” are available for download on CK&E’s Regulatory Compliance web page.

Co-presenter Donald Frey, an industry veteran, regulatory expert and product development and innovation consultant, presented on key regulatory issues from the business perspective, including how to effectively deal with regulators. Mr. Frey has generously agreed to share his presentation, available for download here.

Among the questions and answers covered after the presentation were the addition of titanium dioxide (airborne, unbound particles of respirable size) to the Proposition 65 list of chemicals, responsible entities for purposes of compliance with the Safer Consumer Products Regulations, and the determination of organic ingredients under the National Organic Program standards.

Conkle, Kremer & Engel attorneys are frequent speakers at events of interest to the beauty industry due to their expertise in representing manufacturers, distributors, suppliers, retailers and salons in all aspects of their business, including the challenges of regulatory compliance.

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Five Additions to Prop 65 List of Regulated Chemicals

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The Proposition 65 list identifying chemicals known to the State of California to cause cancer or reproductive harm got a little longer in September 2013, with the addition of five new chemicals by the Office of Environmental Health Hazard Assessment (OEHHA).

Effective September 13, 2013, chloral, chloral hydrate, 1,1,1,2-tetrachloroethane, and trichloroacetic acid are chemicals known to the State of California to cause cancer for purposes of Proposition 65.  1,1,1,2- tetrachloroethane is commonly used as a solvent and in the production of wood stains and varnishes.  Trichloroacetic acid is commonly used in cosmetic treatments such as chemical peels and for the removal of tattoos and treatment of skin tags, warts and moles.

Effective September 27, 2013, chloramphenicol sodium succinate became a chemical known to the State of California to cause cancer for purposes of Proposition 65.

The effect of the listings is that anyone doing business in California must provide a clear and reasonable warning before they expose consumers to any of these chemicals.  None of the five chemicals has an established safe harbor level for exposure, although Proposition 65 generally provides that there is no warning requirement if the exposures caused are so low as to create no significant risk of cancer.

Businesses have some breathing room to comply with the listings under Proposition 65’s safe harbor provision: No action can be taken by the Attorney General, district attorneys or private enforcers until 12 months after the listing of that chemical.  Thus, businesses will have until September 13, 2014 (for chloral, chloral hydrate, 1,1,1,2-tetrachloroethane, and trichloroacetic acid) and September 27, 2014 (for chloramphenicol sodium succinate) before any alleged failure to comply is legally actionable.

Proposition 65 applies to everyone in the supply chain.  Manufacturers, distributors, suppliers, retailers and other entities doing business in California should take advantage of the safe harbor period and review the products they sell to determine whether chloral, chloral hydrate, 1,1,1,2-tetrachloroethane, trichloroacetic acid or chloramphenicol sodium succinate is present in any of their products.  If so, they should consider scientific testing to determine exposure levels.  Possible action that can be taken to proactively handle the new listings include reformulation or providing a clear and reasonable warning to California consumers.  Conkle, Kremer & Engel has substantial experience in helping businesses understand and comply with the requirements of Proposition 65 and other regulations to avoid exposure to liability, and to respond efficiently and effectively if a Notice of Violation is received.

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CK&E Attorneys to be Featured Speakers at Upcoming Beauty Industry Presentation on Legal Regulatory Issues

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Conkle, Kremer & Engel attorneys will be featured speakers at the Beauty Industry West presentation “Navigating in Challenging Regulatory Waters:  Updates on California and Federal Compliance.”  The presentation will take place on October 15, 2013 at the Crowne Plaza Hotel LAX in Los Angeles.

CK&E will be speaking on legal regulatory issues for personal care product companies doing business in California, including California Organic Products Act (COPA), Proposition 65 (California’s Safe Drinking Water and Toxic Enforcement Act) and California’s Green Chemistry Initiative.

Co-presenter Donald Frey is an industry veteran and a product development and innovation consultant of Frey Consulting.  Mr. Frey will present on key regulatory issues from the business perspective, including how to effectively deal with regulators.

Beauty Industry West is a non-profit industry trade organization that educates and provides resources and a networking platform for companies and entrepreneurs who want to develop their own personal care and beauty brands.

Conkle, Kremer & Engel has decades of experience in the personal care industry.  Our attorneys are pleased to participate in trade organizations like Beauty Industry West and to share their experience with members of the industry.

 

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A Proposition 65 Reform Bill Becomes Law: California Health & Safety Code Section 25249.7 Amended by AB 227

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On October 5, 2013, Governor Brown signed into law a bill that makes immediate changes to Proposition 65.  The amendments, which passed the California Legislature last month, impose a number of restrictions on private enforcers seeking to enforce Prop 65 against businesses that allegedly fail to provide a warning as required by Prop 65.  The bill that became law is Assembly Bill 227 (AB 227), introduced by Assemblymember Mike Gatto (Forty-Third District of California) in February 2013, and discussed in our March 13, 2013 blog post.

However, as AB 227 was enacted, only limited types of businesses are likely to benefit.  The amendments are very narrow, covering only certain exposures to alcohol or food-related chemicals, vehicle exhaust and tobacco smoke.  Thus, the only businesses that are likely to benefit from the amendments are bars, restaurants, parking garages, and those who own or operate premises where smoking is permitted.

In general, the amendments establish a new “safe harbor”:  AB 227 prohibits a Prop 65 lawsuit from being filed by a private enforcer over an alleged failure to provide a warning concerning one of the specified exposures, if the business takes specified action within 14 days of receipt of the notice of violation.   The targeted business can escape a Prop 65 action if, within 14 days, the business:  (1) actually corrects the alleged violation; (2) agrees to pay a civil penalty of $500 per facility or premises within 30 days; and (3) submits a “Proof of Compliance” notifying the private enforcer that the violation has been corrected.  If the business takes the so-called “safe harbor” action in response to the notice of violation alleging failure to warn about exposure to alcohol or food-related chemicals, vehicle exhaust or tobacco smoke, the private enforcer is precluded from filing a lawsuit or collect additional civil penalties or attorneys’ fees from the business.

These types of piecemeal amendments to Prop 65 may increase public demand and political pressure for additional reform.  In May 2013, Governor Brown proposed sweeping, substantive reform to Prop 65, intended to end decades of “frivolous ‘shake-down’ lawsuits” by Prop 65 bounty hunters and their lawyers.  But by September 2013, those efforts stalled as stakeholders involved in the reform effort were unable to reach the consensus needed to generate the two-thirds majority approval that is required for any amendment of Prop 65 in the Legislature.

Conkle, Kremer & Engel constantly tracks the latest developments in Prop 65 in order to provide expert guidance and counseling to clients.  This latest amendment is a demonstration that businesses who receive a Prop 65 warning should immediately seek qualified legal counsel to help them avoid liability and unnecessary payments to Prop 65 claimants and their lawyers.  In fact, businesses are well advised to consult qualified legal counsel to review their compliance with Prop 65 before an immediate response becomes necessary.

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California Green Chemistry Initiative: Are You Manufacturing or Selling a “Priority Product”?

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The new Safer Consumer Products (SCP) regulations require the California Department of Toxic Substances Control (DTSC) to initially identify up to five proposed “Priority Products” or categories of products containing what DTSC regards as “Chemicals of Concern.”  By April 1, 2014, DTSC will publish a list of Priority Products selected because of their use of one or more of 164 “Priority Chemicals” listed on the “Initial Candidate Chemicals” list.  Scroll to the bottom of this post for the full list of the 164 Priority Chemicals.

There will be a public review and comment period following publication of the Priority Products list.  It has been widely speculated that nail polish, formaldehyde-based hair straighteners, carpet adhesives and furniture seating foam are among the possible Priority Products that may be identified first by DTSC.

Once a product is identified as a Priority Product, manufacturers or other responsible entities (including importers, assemblers and even retailers) will be required to notify DTSC that their product is a priority product.  The manufacturer or other responsible entity then has some unpleasant options:  It can remove the product from sale, reformulate to remove or replace the chemical of concern in the product, or perform a complex “Alternatives Analysis” to retain the chemical in the product.  The Alternatives Analysis report must be submitted to DTCS for evaluation to determine if there are adverse environmental or public health impacts associated with the product that can be remedied by regulatory responses.  The regulatory responses could require product warnings to consumers, restrictions on the use of the chemical during manufacture, place of sale restrictions, administrative controls, further research regarding alternative ingredients, end-of-life disposal requirements, or even a ban on sales of the product in California.

Manufacturers, retailers, importers and assemblers of consumer products for sale or distribution in California should diligently keep informed about developments in the DTSC’s “Candidate Chemicals” list (currently 1,060 chemicals),  as well as the development of the Priority Products list.  Manufacturers should also consider whether reformulation of their products to exclude the priority chemicals from the “Initial Candidate Chemicals” list is possible.  In addition, it is important that businesses establish clear agreements among manufacturers, importers, distributors, retailers and others in the supply chain specifying who will be responsible for complying with California’s tough new regulatory program, including responding to DTSC if a product is identified as a priority product.  Conkle, Kremer & Engel’s lawyers stay current on the latest developments, and guide the firm’s clients through the thicket of expanding regulatory issues affecting their businesses.

The 164 chemicals found on the “Initial Candidate Chemicals” list, from which the Priority Products will be identified by DTSC, are:

1,1,1,2-Tetrachloroethane1,1,1-Trichloroethane; Methyl chloroform
1,1,2,2-Tetrachloroethane1,1,2-Trichloroethane
1,1-Dichloroethane1,2,3-Trichloropropane
1,2-Diphenylhydrazine; Hydrazobenzene1,2-Epoxybutane
1,3-Butadiene1,3-Propane sultone; 1,2-Oxathiolane 2,2-dioxide
1,4-Dioxane2,2-Bis(bromomethyl)propane-1,3-diol
2,4,6-Trinitro-1,3-dimethyl-5-tert-butylbenzene; musk xylene2,4,6-Tri-tert-butylphenol
2,4.6-Trinitrotoluene (TNT)2?Acetylaminofluorene
2-Methylaziridine (Propyleneimine)2-Methylphenol, o-Cresol
2-Nitropropane3-Methylphenol; m-Cresol
4,4′-Methylenedianiline; 4,4’-Diaminodiphenylmethane (MDA)4-Bromophenyl phenyl ether, Bromophenyl Phenyl Ether
4-Nitrobiphenyl4-Tert-Octylphenol; 1,1,3,3-Tetramethyl-4-butylphenol
AcetaldehydeAcetamide
AcrylamideAcrylonitrile
Allyl chlorideAluminum
AnilineAromatic amines
Aromatic Azo CompoundsArsenic and inorganic arsenic compounds
Asbestos (all forms, including actinolite, amosite, anthophyllite, chrysotile, crocidolite, tremolite)Benzene
Benzene, Halogenated derivativesBenzotrichloride
Benzyl chlorideBeryllium and Beryllium compounds
Biphenyl-3,3′,4,4′-tetrayltetraamine; DiaminobenzidineBisphenol A
Bisphenol A diglycidyl ether polymer; [2,2′-bis(2-(2,3-epoxypropoxy)phenyl)-propane]Bisphenol B;  (2,2-Bis(4-hydroxyphenyl)-n-butan)
BromateButylbenzyl phthalate and metabolite
Cadmium and cadmium compoundsCaptan
Carbon monoxideCarbon tetrachloride; CCl4
CatecholChlorendic acid
Chlorinated ParaffinsChlorine dioxide
ChloriteChloroalkyl ethers
Chloroethane; ethyl chlorideChloroprene; 2-chlorobuta-1,3-diene
Chromium hexavalent compounds (Cr (VI)Chromium trioxide
Cobalt metal without tungsten carbide (including dust and cobalt compounds)Cresols, Cresol mixtures
Cumene, [ isopropylbenzene]Cyanide and Cyanide compounds
Cyclotetrasiloxane; Octamethylcyclotetrasiloxane (D4)Diazomethane
Dibromoacetic acidDibutyl phthalate and metabolites
Dichloroacetic acidDichloroethylenes
Dichloromethane; methylene chlorideDicyclohexyl phthalate and metabolite
Diesel engine exhaustDiethanolamine
Diethyl hexyl phthalate and metabolitesDiethyl phthalate and metabolite
Diisobutyl phthalate and metaboliteDi-isodecyl phthalate and metabolite
Di-isononyl phthalate and metabolitesDimethyl sulfate
Dimethylcarbamoyl chlorideDinitrotoluenes
Di-n-Octyl Phthalate and metabolitesDodecamethylcyclohexasiloxane (D6)
Emissions, CokeovenEpichlorohydrin; 1-Chloro-2,3-epoxypropane
Ethyl acrylateEthylbenzene
Ethylene dichloride; 1,2-DichloroethaneEthylene Glycol
Ethylene oxide; oxiraneEthylene Thiourea
Ethyleneimine, AziridineEthyl-tert-butyl ether
FormaldehydeFuel oils, high-sulfur; Heavy Fuel oil; (and other residual oils)
Gasoline (automotive, refined, processed, recovered, and other unspecified fractions)Glutaraldehyde
Glycol ethersGlycol ethers acetate
Hexabromocyclododecane (HBCD), and mixed isomersHexachlorobuta1,3-diene
HexachloroethaneHexamethylene-1,6-diisocyanate
HexamethylphosphoramideHMX
Hydrazine, Hydrazine compounds and saltsHydrogen sulfide
Jet Fuels, JP-4, JP-5, JP-7 and JP-8Lead and Lead Compounds
Maleic anhydrideManganese and manganese compounds
Mercury and mercury compoundsMethanol
Methyl chlorideMethyl isobutyl ketone, Isopropyl acetone; (MIBK)
Methyl isocyanateMethylene diphenyl diisocyanates
Methylhydrazine and its saltsMethylnaphthalene; 2-Methylnaphthalene
Mineral Oils: Untreated and Mildly TreatedN,N-dimethylformamide; dimethyl formamide
N,N-DimethylhydrazineNaphthalene
n-HexaneNickel and Nickel Compounds; Nickel refinery dust from the pyrometallurgical process
Nickel oxidesNickel, metallic and alloys
Nitrate+NitriteNitrobenzene
NitrosaminesNonylphenol, nonylphenol ethoxylates (NP/NPEs) (and related substances)
ParabensPentabromophenol
PerfluorochemicalsPetroleum; Crude oil
Phthalic anhydridePolybrominated diphenyl ethers (PBDEs) congeners
Polychlorinated biphenyl (PCB) congenersPolychlorinated dibenzo-p-dioxins (PCDDs)
Polychlorinated dibenzo-p-furans (PCDFs) and Furan CompoundsPolycyclic Aromatic Hydrocarbons (PAHs)
Propylene oxideQuinoline and its strong acid salts
Silica, Crystalline (Respirable Size)Stoddard solvent; Low boiling point naphtha – unspecified;
Strong Inorganic Acid Mists Containing Sulfuric AcidStyrene and derrivatives
Sulfur dioxideTetrabromobisphenol A (TBBPA)
Tetrachloroethylene; Perchloroethylene; (PERC)Thallium
TolueneToluene Diisocyanates
Trichloroethene (TCE)Trihalomethanes
Tris(1,3-dichloro-2-propyl) phosphate (TDCPP)Tris(2,3-dibromopropyl) phosphate
Tris(2-chloroethyl)phosphate (TCEP)Vanadium pentoxide
Vinyl acetateVinyl Bromide, Bromoethylene
Vinyl chloride; chloroethyleneXylenes; [o-xylene (95-47-6), m-xylene(108-38-3)and p-xylene (106-42-3)]

 

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California Green Chemistry Initiative: Does Your Product Contain a "Candidate Chemical” that Could Become a “Chemical of Concern” to the California Department of Toxic Substances Control?

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Effective October 1, 2013, companies doing business in California will have to navigate and comply with yet another system of complex regulations:  The Safer Consumer Products (SCP) regulations adopted by the California Department of Toxic Substances Control (DTSC) will require manufacturers, importers, assemblers and retailers to seek safer alternatives to certain harmful chemical ingredients in widely used products.

The SCP regulations are the first step in implementing California’s Green Chemistry Initiative. The goal of the SCP regulations is to accelerate the manufacture and use of safer versions of products in California by:  (1) establishing a process to identify and prioritize chemical ingredients in consumer products that may be considered “chemicals of concern,” and (2) establishing a process for evaluating chemicals of concern and their potential alternatives, to determine how best to limit exposure to or to reduce the level of hazard posed by chemicals of concern.

The SCP regulations apply to all consumer products that contain a “Candidate Chemical” and are sold, offered for sale, distributed, supplied, or manufactured in California.  The regulations do not apply to food, pesticides, dangerous prescription drugs and devices, dental restorative materials or medical devices.  There are currently 1,060 “Candidate Chemicals” that DTSC believes have hazard traits or environmental or toxicological effects.

The DTSC has already released its list of  “Initial Candidate Chemicals” that will receive DTSC’s priority attention.  Toluene, formaldehyde and bisphenol A are among the 164 “Initial Candidate Chemicals” that DTSC will consider to identify the “priority products” that DTSC will address first.

Conkle, Kremer & Engel’s lawyers stay current on the latest developments, and guide the firm’s clients through the thicket of expanding regulatory issues affecting their businesses.  Watch for our next post on Green Chemistry, identifying the chemicals that can make your product a candidate to be a “priority product” for the DTSC.

 

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Naked Juice Labels to be Stripped of "All Natural" and "Non-GMO" Claims in False Advertising Settlement

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PepsiCo has agreed to pay $9 million to settle a class action battle over its use of the words “All Natural” and “Non-GMO” (non-Genetically Modified Organism) on its Naked Juice drink products.  As part of the settlement, PepsiCo agreed to change its labeling.

If approved by the district court, the settlement would resolve five separate class action lawsuits, which were consolidated with the lead case Pappas v. Naked Juice Co. of Glendora, Inc., in March 2012.

The case against PepsiCo stems from allegations that statements on the Naked Juice labels constitute false advertising.  The plaintiffs sued for violation of a number of California statutes – the Consumer Legal Remedies Act (CLRA) and False Advertising and Unfair Competition Laws.

According to the plaintiffs, independent testing revealed genetically modified soy protein in some Naked Juice products.  The plaintiffs also alleged that several ingredients in the Naked Juice products are non-natural, including ingredients like beta carotene and biotin which do occur naturally but are produced synthetically when added as supplements to foods, and a fiber ingredient that is produced by chemically rearranging corn starch molecules.  All of these ingredients are listed in the ingredient panel, but according to the plaintiffs, a reasonable consumer wouldn’t scrutinize the ingredient list for information contradicting the plain, conspicuous statements “All Natural” and “Non-GMO.”

The settlement in the PepsiCo case is likely to lead to many more class action lawsuits against businesses that advertise their products as “natural” or “all natural.”  Unlike use of the word “organic,” use of the word “natural” is not explicitly regulated by federal or state law, leaving the door open for claims of false or misleading advertising by consumers.

What’s the moral of this story?  An ounce of prevention is worth a pound of cure.  It is important to scrutinize health-related language used in advertising, especially on food products, and ensure there is documentation to back up claims.  CK&E routinely works with clients to evaluate the language on product packaging and in advertising as part of a comprehensive risk analysis so they can make informed choices for their businesses.  CK&E also has extensive experience defending clients against consumer false advertising claims.

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2012: A Bountiful Year for Prop 65 Plaintiffs and Their Lawyers

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Proposition 65 requires that businesses warn about the presence of chemicals believed by the State of California to cause cancer or reproductive harm.  Private citizens may file lawsuits “in the public interest” against businesses alleging a failure to provide the required warning.  Such lawsuits are often filed by private law firms (sometimes called “bounty hunters”), in the names of repeat-plaintiffs like “Center for Environmental Health,”  after sending Notices of Violation. The apparent primary purpose is to obtain quick cash settlements from bewildered, unsuspecting businesses.

2012 Prop 65 Settlements Bar Chart by Year2012 was a particularly “bountiful” year for Prop 65 private plaintiffs, according to data recently released by the California Attorney General’s Office. In 2012, private plaintiffs settled 397 cases.  The settlements totaled nearly $20.5 million. When combined with the additional settlements by District Attorneys and the Attorney General’s Office, there were 437 Prop 65 settlements during 2012, totaling over $22.5 million.  2012 was the second-highest annual dollar total for Prop 65 settlements since 2000, and shows a clear upward trend in the settlements extracted from businesses that receive Prop 65 Notices of Violation.

It should surprise no one who studies Prop 65 issues that the bulk of the $22.5 million paid in Prop 65 settlements during 2012 went to the plaintiffs’ attorneys:  Attorneys’ fees made up more than $14.5 million, or 71.34% of all private settlements.  Private plaintiffs can also take 25% of any civil penalty assessed as a “bounty”.  In 2012, the civil penalties retained by plaintiffs represented an additional $755,000 or 3.7% of all private settlements.

2012 Prop 65 Settlement Pie ChartA lesser-known fact is that private plaintiffs and their attorneys can and do make even more money from Prop 65 settlements.  A portion of each Prop. 65 settlement is supposed to go toward causes or activities that further the purpose of Prop 65, so Prop 65 allows parties to structure some of their civil penalty allocation as a “Payment in Lieu of Penalties” (aka “PILP”).  Some Prop 65 plaintiffs have kept such PILP recoveries to support vaguely stated causes; some Prop 65 plaintiffs have even argued that funding more private litigation itself is activity that furthers the purpose of Prop 65, justifying PILP recoveries from settlements.  In 2012, PILP money made up 13.88% of all private settlements.  That means almost $3 million landed in the hands of private plaintiffs and their attorneys, in addition to the attorneys’ fees and civil penalty bounties they received.

Statewide, there are only a few active Prop 65 plaintiffs.  Aggregated settlement data can be useful in achieving cost-effective resolutions of Prop 65 claims.  CK&E routinely defends businesses who have received Prop 65 Notices of Violation.  CK&E also works with businesses to develop compliance strategies to minimize the risk that they will be future targets of Prop 65 plaintiffs.

This Blog Post was Co-Authored by Jackson McNeill, Law Clerk, UCLA School of Law, Class of 2014

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